Inchoate Crimes

The term inchoate crimes refers to acts engaged in toward the commission of a criminal act, or which amount to indirect participation in a criminal act. While such an action may not be a crime in and of itself, it is engaged in for the purpose of furthering or advancing a crime. These types of acts are illegal because it is in the public’s best interest to deter people from engage in crime-promoting activity. To explore this concept, consider the following inchoate crimes definition.

Definition of Inchoate

Pronounced: in-koh-it


  1. Of, or relating to, a crime
  2. Consisting of acts that are preliminary, or lead up to a crime


1525-1535       Latin  inchoātus (“to begin work on”)

What are Inchoate Crimes

The dictionary defines an inchoate crime as a criminal act that has just begun, or which is not fully formed or developed. Technically, inchoate crimes are incomplete crimes, in the sense that they involve such acts as:

Types of Inchoate Crime

Because the term inchoate crime refers to actions that are taken in order to begin or further a crime, there are many acts that qualify. Following are the basic types of inchoate crime:

1. Attempt to Commit a Crime

An attempt to commit a crime involves trying to commit an unlawful act, but failing. Failure might be due to unforeseen circumstances interfering with the attempt, or simply a change of mind. The most necessary element in proving an attempt to commit a crime is intent.

The individual must have had a specific intent to engage in that particular activity, or to commit a certain crime. The individual must have actually taken some type of action in furtherance of the crime. Finally, the actual crime must not have been committed or finalized. Had the individual actually completed the crime, this would not be an example of inchoate crime, as he would be charged with that crime, rather than an attempt to commit a crime.

2. Aiding and Abetting a Crime

Aiding and abetting a crime means to help or hide the person who committed the crime, or facts regarding the crime. This is someone who did not commit the crime himself, but who helped to conceal the offender’s actions. This is a crime. In some jurisdictions, an individual who aids and abets a crime is known as an “accessory” to the crime. To prove an individual is guilt of aiding and abetting a crime, it must be shown that he and an intent to help in the commission, or to hide the facts or evidence.

3. Conspiracy to Commit a Crime

Conspiracy to commit a crime occurs when two or more people work together – even if it is only in planning and preparing – to commit a crime. A criminal charge of conspiracy does not require that an actual attempt to commit the crime, as it is illegal to conspire together to commit a crime. In fact, an person can be charged with both an actual crime, and conspiracy to commit that crime. What it does require is more than one participant, as a person acting alone cannot be charged with conspiracy with himself.

4. Solicitation to Commit a Crime

Another example of inchoate crime is solicitation to commit a crime involves offering money to a person, for the purpose of persuading him to commit a crime. While it is commonly known that solicitation for prostitution is illegal, as it involves offering a person money in exchange for sex. Solicitation applies to other crimes as well, however.

Example of Inchoate Crime in Solicitation

Miranda has had it with her husband’s cheating, but leaving him will put her in a financial bind. She wants to take advantage of his $1 million life insurance policy, so she offers a man $100,000 to kill her husband, making it look like a fishing accident. While Miranda has no intention to murder her husband herself, she has committed the inchoate crime of solicitation, by offering money to someone to induce him to commit the crime of murder.

Discovering Inchoate Crimes

Because inchoate crimes involve actions not taken, or not completed, as well as the involvement of additional people, who are often behind-the-scenes, these may be difficult to uncover. Discovering inchoate crimes, however, often leads investigators and prosecutors to the individual who actually committed the crime. Unfortunately, discovering inchoate crimes often leads prosecutors to some sticky questions of civil rights violations.

For instance, a person who aided and abetted someone else’s crime might have documents in his home or office that prove certain elements of the crime. How investigators obtain those documents is still subject to the constitutional guarantee of freedom from unreasonable search and seizure. Additional questions then arise as to whether this Fourth Amendment right applies only to the person aiding and abetting, or whether it extends that protection to the person who actually committed the crime.

For example:

Officers investigating a burglary committed by Thomas, suspect that Arti knows about the burglary, and that he may actually be hiding the items taken in the burglary. When they go to Arti’s home to question him, the officers see a ledger book with a bunch of papers sticking out of it, sitting on a desk.

Curious, one of them flips the book open, and realizes that it contains records of, not only the burglary they are currently investigating, but of other thefts as well. It appears that Arti has been hiding the goods that Thomas steals, then helping him sell them. Arti, when charged with the inchoate crime of aiding and abetting, may be able to bring a defense of violation of his Fourth Amendment rights.

If the judge agrees, the evidence found by investigators without a proper search warrant would not be allowed at trial. The question then becomes whether that evidence could be excluded from Thomas’ trial as well.

Defenses to Inchoate Crime

A person charged with an inchoate crime may have several options to present a defense. Possible defenses to inchoate crime would vary by jurisdiction.


An individual may claim, as a defense to inchoate crime charges, that he had abandoned his efforts to commit the crime, even though he may have engaged in some amount of planning. He may argue that he did not conspire, nor attempt, to commit the crime. In order to prove abandonment as a defense to inchoate crime, it must be shown that he had voluntarily and completely abandoned his efforts toward committing the crime. In fact, to successfully prove abandonment as a defense to an inchoate crime, the defendant must prove that he did at least one of the following:

  • Ceased all actions toward the crime
  • Took action in an attempt to stop the crime as it was going on
  • Attempted to convince others involved in commission of the crime to stop
  • Reported the crime to the police or other law enforcement authorities


An impossibility defense relies on the defendant’s claim that whatever illegal act he had been planning simply could not be accomplished because of some unforeseen event. Impossibility can be divided into two basic categories: legal impossibility, and factual impossibility.

It should be noted that a defense of impossibility is not valid if the condition making it impossible is not known to the defendant at the time. For example, attempting a steal a wallet from a pocket cannot be defended through impossibility simply because the pocket turned out to be empty. There is no way the thief knew that before he stuck his fingers into the pocket.

Legal impossibility

If a defendant argues that what he had intended to do turned out to not be a crime after all, he is taking a legal impossibility defense.

For example:

Darren is up in arms about the deer that have been grazing in his garden. One evening, when the deer show up to the ersatz buffet, Darren fires off a round with his hunting rifle, intending to scare the herd away. The bullet, which went wide of a large doe, hit a tree, narrowly missing his neighbor’s head.

Darren is charged with attempted murder for the shot that nearly scared his neighbor to death – not to mention the near-death experience. Darren may offer a defense to the inchoate crime of attempted murder, claiming that the charge is a legal impossibility.

This is because Darren’s intent was to scare off the deer, not to shoot his neighbor. Had he actually shot his neighbor, he might have been charged with something very serious, such as manslaughter. This is where intent is so important in any criminal charge.

Factual Impossibility

A defendant may claim a defense of factual impossibility if circumstances made it impossible for him to have completed the crime he intended to commit. For instance, no amount of planning will enable a thief to steal a diamond watch when, the day prior to the heist, a tornado ripped off the part of the house containing the safe. Even though the defendant planned on, and attempted to, steal the diamond, it was factually impossible to do so.

Factual impossibility is only available as a defense in some states, the rest holding out that the individual’s intent is the most important factor.

Inchoate Crimes Example in Burglary Tools

In many jurisdictions, simply possessing certain items that can be used to commit burglaries is a crime. The crime of possession of burglary tools falls under the umbrella of inchoate crimes, as it shows an intent to commit a crime.

In January 1990, a woman heard a noise, and saw person’s shadow on the porch near her bedroom. Afraid, she called the police. When they arrived, the officers saw Anthony Green running away from the woman’s house, so they chased him. Green was arrested, wearing a jumpsuit, and trying to shake off the garden gloves he was wearing. He was ultimately charged with burglary, and with possession of burglary tools (the gloves). Green was convicted on both charges, then appealed the conviction.

The appellate court upheld the conviction, holding that gloves could be considered a tool or implement to be used for burglary, referring to Florida law, which provided:

“Whoever has in his possession any tool, machine, or implement with intent to use the same, or allow the same to be used, to commit any burglary or trespass shall be guilty of a felony.”

Related Legal Terms and Issues

  • Defendant – A party against whom a lawsuit has been filed in civil court, or who has been accused of, or charged with, a crime or offense.
  • Intent – A resolve to perform an act for a specific purpose; a resolution to use a particular means to a specific end.
  • Jurisdiction – The legal authority to hear legal cases and make judgments; the geographical region of authority to enforce justice.